For Better or Worse

Bloggers are wondering about New York Gov. David Paterson’s directive to state agencies on gay marriage, and weighing the ruling handed down from the Texas Supreme Court on the seizure of children in the polygamy raid.

For better or worse: Although Massachusetts and California are currently the only states that permit same-sex marriage, New York Gov. David Paterson issued a directive earlier this week saying state agencies must recognize out-of-state same-sex marriages in the same way they validate “any other legal union,” a move that many believe is a first step toward wholly legalizing gay marriage in New York.

A day after the memo became public,New York magazine’s Daily Intel praises the governor: “David Paterson has long been a supporter of gay marriage, but with state Republicans sitting on a bill about the issue, his hands have been pretty much tied since he took over in Albany. So when California legalized gay marriage for nonresidents, he seized his chance.”

The negative reaction to the governor’s decree was equally swift. Don Surber of the Charleston Daily Mailwrites: “I am for legalizing gay marriage. This is not legalizing gay marriage. This is a violation of the New York Constitution, Article III, Section 1: ‘The legislative power of this state shall be vested in the senate and assembly.’ ” Lawhawk at A Blog for All,explains why it’s a legislative matter: “This is not merely some minor issue, but is a fiscal one as extending benefits to gay partners/spouses is a cost to be borne by the state and its taxpayers. Yet, the Legislature has no say in the matter? I think Gov. Paterson may have just gotten himself into trouble. Look, if New Yorkers want to extend benefits to gay partners/spouses, that’s fine, but the Governor can’t do so by fiat.”

Yet the opposition has little ground, responds Dale Carpenter, a law professor at the University of Minnesota and a contributor at the Volokh Conspiracy: “In theory, the state’s high court could hold that same-sex marriages are repugnant to public policy in the state, and thus refuse recognition to such marriages from out of state. But that would be a very unusual decision.” Instead, Carpenter says, opponents’ best bet is to just vote Paterson out of office. Conservative Dan Blatt at Gay Patriot quotes Carpenter and concludes that “[w]hile the Governor’s action does appear to be an end-run around his state Court of Appeals (its highest court) 2006 decision refusal to mandate gay marriage in the Empire State, it does seem the New York Governor is on firmer legal ground than the California Supreme Court.”

Aubrey Sarvis at the Huffington Postbelieves the recent developments in California and New York reflect a monumental shift in public opinion: “A Field Poll released this week indicated 51% of Californians approve and 42% disapprove the May 15 decision of the California Supreme Court that overturned Proposition 22, the ballot initiative preventing the state from recognizing same-sex marriages. Prop 22, as it is known, was approved by more than 61% of the voters in 2000. That is a stunning shift of opinion in eight years.”

Yearning for custody:The Texas Supreme Court ruled 6-3 Thursday that social workers overstepped their jurisdiction when they removed hundreds of children from the Yearning for Zion Ranch. The court’s announcement may clear the way for the return of the children, though it is unlikely that this will occur soon since the state has yet to carry out DNA testing to determine which children belong to which parents.

Eugene Volokh at Volokh Conspiracydissects the court’s decision. He writes that the majority’s opinion provides little in the way of analysis, most likely because they were merely relying on the lower court’s decision. The dissenting opinion, Volokh suggests, relies primarily on the notion that the social workers ought to be pardoned in their failure to provide substantial evidence, because the YZR made no efforts to be transparent about their practices, even lying at times. At the same time, he points out that previous abuse in a community does not necessarily mean that all children in that community are being abused: “A particular girl’s mere presence in a community that tolerates this sort of behavior, it seems to me, can’t be enough as a legal matter for a finding that the girl is in enough danger to be seized. If the government swept through many a neighborhood in the country, it would probably find lots of underage girls who are pregnant, many through illegal sex — yet I take it that this wouldn’t justify even a temporary removal of one girl from her parents because of the pregnancy of other girls in neighboring houses.”

Jami Floyd of CNN’s In Sessionagrees in a post at the Anderson Cooper 360 Blog. The decision was right, she asserts, “not as a matter of sympathy, or morality, or decency, but as a matter of constitutional law. … [S]tate agents cannot simply storm homes, polygamist or otherwise, to remove children without a showing of abuse. Suspicions are not enough.”

In Texas, Chuck Lindell, blogging for the Austin Statesman, points out that the Supreme Court didn’t bother to hear oral arguments. At Reason’s Hit & Run, Jacob Sullum points out that “three justices said the state would have been justified in removing just the girls who had reached puberty and who might therefore be in danger of sexual abuse. These girls were a small minority of the 468 children seized by the state, many of whom were boys and half of whom were 5 or younger.” Across the state, Dave Mann at the Texas Observerreiterates that the ruling does not prevent Texas Child Protective Services from seizing endangered FLDS children at a later date. But the decision is a blow to the increasingly embattled CPS. As Mann notes, “The agency has now been rebuked by two of the state’s highest courts for its handling of the largest child custody case in Texas history.”